REGIONAL PERSPECTIVES ON AGRICULTURAL

GUESTWORKER PROGRAMS

HEARING
BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION

FEBRUARY 9, 2012

Serial No. 11292

Printed for the use of the Committee on the Judiciary

(
Available via the World Wide Web: http://judiciary.house.gov

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REGIONAL PERSPECTIVES ON AGRICULTURAL GUESTWORKER PROGRAMS

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REGIONAL PERSPECTIVES ON AGRICULTURAL

GUESTWORKER PROGRAMS

HEARING
BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION POLICY AND ENFORCEMENT
OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION

FEBRUARY 9, 2012

Serial No. 11292

Printed for the use of the Committee on the Judiciary

(
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON

72787 PDF

2012

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 5121800; DC area (202) 5121800
Fax: (202) 5122104 Mail: Stop IDCC, Washington, DC 204020001

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COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, JR.,
JOHN CONYERS, JR., Michigan
HOWARD L. BERMAN, California
Wisconsin
JERROLD NADLER, New York
HOWARD COBLE, North Carolina
ROBERT C. BOBBY SCOTT, Virginia
ELTON GALLEGLY, California
MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia
ZOE LOFGREN, California
DANIEL E. LUNGREN, California
SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio
MAXINE WATERS, California
DARRELL E. ISSA, California
STEVE COHEN, Tennessee
MIKE PENCE, Indiana
HENRY C. HANK JOHNSON, JR.,
J. RANDY FORBES, Virginia
Georgia
STEVE KING, Iowa
PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona
MIKE QUIGLEY, Illinois
LOUIE GOHMERT, Texas
JUDY CHU, California
JIM JORDAN, Ohio
TED DEUTCH, Florida
TED POE, Texas
NCHEZ, California
LINDA T. SA
JASON CHAFFETZ, Utah
JARED POLIS, Colorado
TIM GRIFFIN, Arkansas
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel
PERRY APELBAUM, Minority Staff Director and Chief Counsel

SUBCOMMITTEE

ON

IMMIGRATION POLICY

AND

ENFORCEMENT

ELTON GALLEGLY, California, Chairman

STEVE KING, Iowa, Vice-Chairman
DANIEL E. LUNGREN, California
ZOE LOFGREN, California
LOUIE GOHMERT, Texas
SHEILA JACKSON LEE, Texas
TED POE, Texas
MAXINE WATERS, California
TREY GOWDY, South Carolina
PEDRO R. PIERLUISI, Puerto Rico
DENNIS ROSS, Florida
GEORGE FISHMAN, Chief Counsel
DAVID SHAHOULIAN, Minority Counsel

(II)

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CONTENTS
FEBRUARY 9, 2012
Page

OPENING STATEMENTS
The Honorable Elton Gallegly, a Representative in Congress from the State
of California, and Chairman, Subcommittee on Immigration Policy and
Enforcement ..........................................................................................................
The Honorable Zoe Lofgren, a Representative in Congress from the State
of California, and Ranking Member, Subcommittee on Immigration Policy
and Enforcement ..................................................................................................
The Honorable Lamar Smith, a Representative in Congress from the State
of Texas, and Chairman, Committee on the Judiciary .....................................

1
2
4

WITNESSES
Gary W. Black, Commissioner, Georgia Department of Agriculture
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Paul Wenger, President, California Farm Bureau Federation
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
H. Lee Wicker, Deputy Director, North Carolina Growers Association
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Bruce Goldstein, President, Farmworker Justice, Washington, DC
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

21
23
26
81
87
90
93
139

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Sam Farr, a Representative in Congress
from the State of California, submitted by the Honorable Zoe Lofgren,
a Representative in Congress from the State of California, and Ranking
Member, Subcommittee on Immigration Policy and Enforcement ...................
Material submitted by the Honorable Daniel E. Lungren, a Representative
in Congress from the State of California, and Member, Subcommittee on
Immigration Policy and Enforcement .................................................................
Technical Report 1167 titled H-2A Temporary Agricultural Employee Program, submitted by Paul Wenger, President, California Farm Bureau Federation ...................................................................................................................
Report titled No Way to Treat a Guest, submitted by Bruce Goldstein,
President, Farmworker Justice, Washington, DC .............................................

6
6
28
95

APPENDIX
MATERIAL SUBMITTED

FOR THE

HEARING RECORD

Prepared Statement of the Honorable Doc Hastings, a Representative in

Congress from the State of Washington .............................................................
Letter from Diego Santiago Reyes Margarita, Farm Labor Organizing Committee, AFL-CIO ...................................................................................................

161
163

(III)

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IV
Page

Prepared Statement of Robert L. Guenther, Senior Vice President, Public

Policy, United Fresh Produce Association ..........................................................
Brochure submitted by the National Council of Agicultural Employers
(NCAE) ..................................................................................................................
Report submitted by Gary W. Black, Commissioner, Georgia Department
of Agriculture ........................................................................................................

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170

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REGIONAL PERSPECTIVES ON
AGRICULTURAL GUESTWORKER PROGRAMS
THURSDAY, FEBRUARY 9, 2012

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON IMMIGRATION
POLICY AND ENFORCEMENT,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:06 a.m., in room
2141, Rayburn House Office Building, the Honorable Elton Gallegly
(Chairman of the Subcommittee) presiding.
Present: Representatives Gallegly, Smith, Lungren, Gowdy, Ross,
Lofgren, and Jackson Lee.
Staff Present: (Majority) George Fishman, Subcommittee Chief
Counsel; Marian White, Clerk; (Minority) David Shahoulian, Subcommittee Chief Counsel; and Tom Jawetz, Counsel.
Mr. GALLEGLY. I call to order the Subcommittee on Immigration
Policy and Enforcement.
Today we have a hearing on Regional Perspectives on Agricultural Guestworker Programs.
Good morning to all.
Todays Subcommittee hearing represents our third hearing on
the issue of seasonal agricultural labor and legislative proposals regarding a guestworker program. This is a complex issue which impacts not only foreign farm workers and agricultural employers but
also U.S. workers, local communities throughout the United States,
and, of course, the American taxpayer.
This is a critical issue to U.S. agriculture because real-world experience has shown that there are simply not enough Americans
willing to work as migrant farm workers. The labor-intensive
branch of agriculturefruits, vegetables, and horticulture specialtiesemploys over 1.2 million individual farm workers a year.
Each year, farm workers are interviewed by the U.S. Department
of Labors National Agricultural Workers Survey. The survey found
that, over the 2007 and 2009 period, 48 percent of farm workers
openly admitted being illegally in the country. The actual figure
may be even higher, and the NAWS shows that 85 percent of firsttime farm workers openly admit to being illegally in the country.
What options for legal workers do growers really have? Since
1986, the H-2A program has made visas available for temporary
AG workers. However, 16 years ago, American agriculture told the
Subcommittee that the H-2A program was characterized by extensive, complex regulations that hamstring employers who try to use
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2
it, and by costly litigation challenging its use when admissions of
alien workers are sought. They alleged that the Department of
Labor was implacably opposed to the program.
Front and center in the growers minds was ensuring the availability of sufficient labor to meet crucial needs like harvesting
whose timing varies with the weather. Unfortunately, timeliness
has never been the H-2A programs strong suit. Neither has realism about the availability of domestic labor. It seems that little has
changed in the intervening 16 years.
The Bush administrations Labor Department initiated a bold
plan to revamp the H-2A program. The plan, which was later rescinded by the Obama administration, remade the program into an
attestation-based system designed to streamline the regulatory
process and speed up the availability of guestworkers for growers
that faced labor shortage. It also was designed to make the costs
of the program more manageable for the growers.
Even though these changes did improve the H-2A program, let
me make it clear on one point. The H-2A program is not structured
to meet the needs of the vast majority of agricultural employers in
the United States. It simply is not flexible enough to provide an
adequate supply of labor in a timely fashion to many growers, especially growers of specialty crops, across the country.
I look forward to hearing the testimony today of a diverse panel
of witnesses who will provide their own assessment of the H-2A
program and to discuss specific recommendations for an alternative
guestworker program. It is my hope that this hearing will plant the
seed for much-needed reform of our agricultural visa program.
And, with that, I would yield to my good friend, the Ranking
Member from California, the number-one AG State in the United
States, Ms. Lofgren.
Ms. LOFGREN. That is correct. Thank you, Mr. Chairman.
You are right, this is the third hearing before the Subcommittee
specifically on our AG workforce. But, really, we have been talking
about the issue for this whole Congress, in relation to Chairman
Smiths proposal to implement a mandatory E-Verify system. As
Members of both sides of the aisle have made clear, without something to address the countrys agricultural workforce needs, mandatory E-Verify would simply destroy segments of our agriculture industry.
Looking back at the numerous hearings we have held on this
issue over the last few years, I think that critical facts are sometimes ignored. We all know that crops like corn, wheat, and soy are
not the issue here. The biggest problem is with seasonal, labor-intensive fruit and vegetable production. When it comes to such
farming, we dont just need a workforce, we need an experienced
workforce. And even an experienced workforce is not enough; we
need a fast, flexible, and experienced workforce.
Farmers do their best to plan harvests, but unusual rises or dips
in temperature or humidity can suddenly move up a harvest, giving
growers just days or even hours to pick valuable crops. Planned
harvest schedules often go right out the window. The grower must
find experienced workers with the right skills immediately or lose
his or her crops.

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Luckily, such a fast, flexible, and experienced workforce exists in
America today. Those workers have helped make American agriculture a resounding success. For those who believe in the power
of the free market, this is a prime example of that power.
Technological advancement may get all the attention, but America has long been an agricultural powerhouse. Agriculture continues to be a major sector of our economy and a primary U.S. export. In fact, we export so many more agricultural products than
we import that the sector is regularly the largest in which we see
a trade surplus.
Yet Congress has long ignored the needs of labor in this sector.
For decades, we have rightfully been educating and training our
children for work in other areas. And at the same time, our immigration laws have made it all but impossible to fill the resulting
void with foreign, legal workers. Despite a need for millions of
workers, some on a permanent basis, our immigration laws have
made only 5,000 green cards available per year for people without
bachelors degrees. That is 5,000 per year to be shared not just by
agricultural employers but also by landscapers, restaurants, hotels,
and many other industries who hire such workers.
The H-2A temporary worker program hasnt done the job either.
Any employer will tell you that the program is just too slow and
bureaucratic for fast-moving harvests. A recent survey by the National Council of Agricultural Employers found that 72 percent of
H-2A users reported that their workers arrived 22 days, on average, after the date of need. So it is no surprise that the program
is used so sparingly, reaching the high-water mark of 64,000 visas
in 2008.
In that environment, is it any wonder that market forces worked
their magic to pair up willing employers and willing workers? Lets
be honest here, the government essentially left farmers with no
choice but to hire undocumented workers. And everyone, including
the government, looked the other way as workers came in to fill the
jobs that our country desperately needed filled.
So what do we do now? Do we accept responsibility for creating
this mess, recognize that we have an experienced workforce that
has been providing critical services to the country for years, provide a way for them to obtain legal status and continue to help this
country succeed? Or do we, as some suggest, attempt to throw out
this entire experienced workforce and import millions of new workers through a government-controlled program that has never
worked in the past?
I have mentioned it before, but I need to mention it again. How
can anyone think that the answer to our labor needs is to deport
over a million agricultural workers who are already hereworkers
who have experience, who know where to go, what to do, when to
do itjust to ship in millions of new government-approved workers
every year, year after year after year?
The proposals essentially ask taxpayers to spend billions to deport the experienced workers, only then to require Americas farmers to shoulder the costs annually of bringing in millions of new
workers. It doesnt make sense. It wont work.
We already know the result in those States where action has
been takentremendous loss. We have seen a preview in Georgia

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4
and Alabama because of their new immigration laws. University of
Georgia estimates that because of resulting worker shortages in
just seven key berry and vegetable crops, Georgia and its growers
will suffer up to $391 million in direct and indirect losses every
year. And a professor at the University of Alabama estimates that
Alabama will face between $2 billion and $11 billion in annual economic losses. Is this what we want for American agriculture?
I think we need to face facts. The law has been broken for decades, failing to meet the needs of entire industries, particularly AG.
People took matters into their own hands. Yes, the workers came
without obeying the rules, but almost every fruit and vegetable
farmer in the country also broke the rules. The government essentially let it all happen. We are all at fault. We need to recognize
that and do what is right for the country, and we cant allow ideology to trump common sense.
So, with that, Mr. Chairman, I would yield back.
Mr. GALLEGLY. I thank the gentlelady.
And the good news is, we have this hearing this morning. The
bad news is, the bells just went off and we do have votes. We will
get back as quickly as possible. We may lose some Members along
the way, but this will be an important thing to have on the record,
and we will recess until such time as needed to get back from, as
quickly as possible, from the intervening votes.
So, with that, we stand in recess, hopefully for not more than
about 35 or 40 minutes. Thank you.
[Recess.]
Mr. LUNGREN [presiding]. At this time, the Chair would recognize the Chairman of the full Committee, the gentleman from
Texas, for a statement.
Mr. SMITH. Thank you, Mr. Chairman.
The agriculture industry needs to hire hundreds of thousands of
seasonal workers each year to help put food on Americans tables.
However, many workers with better options choose to work elsewhere. That is why many illegal immigrant farm workers who received amnesty in 1986 soon left the fields for other jobs in the city.
As the President of the American Farm Bureau has stated, any
new amnesty, such as AG jobs, would have the same result. Because of this, U.S. employers often face a shortage of available
American workers to fill seasonal agricultural jobs.
There is no numerical limit to H-2A temporary agricultural work
visas, yet half of farm workers remain illegal immigrants. Why
dont more growers who have heavy demands for seasonal agriculture labor make use of the program? Well, in 2008, the Department of Labor concluded that the vast majority of growers, find
the H-2A program so plagued with problems that they avoid using
it all together.
This Subcommittee held a hearing last year in which witnesses
described what was wrong with the H-2A program. Growers believe
that the Labor Department, which largely administers the H-2A
program, is hostile to them and the program. Growers are also
troubled by the great cost of using the H-2A program, especially
the adverse effect wage rate. Growers have to build free housing
for their guestworkers.

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5
America needs an agricultural guestworker program that is fair
to everyone it impacts: American growers, farm workers, consumers, and guestworkers. A program must provide growers who
want to do the right thing with a reliable source of legal labor. It
must protect the livelihoods of American workers and the rights of
guestworkers. And it must keep in mind the pocketbooks of American families.
I have introduced legislation, the American Specialty Agriculture
Act, that accomplishes these goals. It establishes an H-2C
guestworker program responsive to the needs of American growers
and maintains strong policies to protect citizens and legal workers.
And it does so without the fraud-ridden mass amnesty for illegal
immigrant farm workers that failed in 1986.
Let me highlight some of the provisions of the bill. First, the bill
puts the Agriculture Department in charge of the H-2C program.
Second, in order to minimize red tape, the bill streamlines the
process for H-2C workers by making it attestation-based, just like
the H-1B program for high-skilled workers.
Third, the bill requires growers to pay H-2C workers and American workers the prevailing wage, as required in other guestworker
programs. Fourth, the bill allows growers to provide a housing
voucher instead of actual housing, which can prove extremely burdensome for growers who may need foreign workers for only a few
weeks a year.
Fifth, the bill opens up the H-2C program to dairies and other
agricultural producers that cannot use the H-2A program because
they employ workers year-round. Sixth, the bill allows growers to
include binding arbitration in contracts with H-2C workers in order
to forestall abusive and frivolous litigation.
I am also pleased that the report of Georgia Agriculture Commissioner Black finds that my bill, institutes an H-2C program that
will be responsive to the needs of Americas specialty growers. And
I look forward today to hearing perspectives from both coasts on
how best to write and implement an agricultural guestworker program. We must put policies in place that help ensure American
growers can keep growing our crops and our economy.
Thank you, Mr. Chairman. I yield back.
Mr. LUNGREN. I thank the Chairman for his statement.
And I might say, I enjoy sitting here because it is the first time
I have seen that there is an override button where I can cancel all
other microphones while activating my own.
Mr. SMITH. You are not supposed to know that.
Mr. LUNGREN. I never knew that was here, but
Ms. LOFGREN. Before you do that, Mr. Chairman, could I ask
unanimous consent to put the statement of Congressman Sam Farr
into the record?
Mr. LUNGREN. Absolutely. Without objection, so ordered.
[The prepared statement of Mr. Farr follows:]

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Prepared Statement of the Honorable Sam Farr, a Representative in
Congress from the State of California
Chairman Gallegly, Ranking Member Lofgren and Members of the Subcommittee,
As the Judiciary Subcommittee on Immigration Policy and Enforcement reviews
immigration reform proposals, I urge you to consider the impact that policy changes
would have on the California agricultural industry and the workers they employ.
As Members of Congress, we must enact immigration policies that are tough, fair
and practical.
Successful immigration reform must establish a system that turns those who are
willing to work hard and play by the rules into taxpayers, paying their fair share.
We need a system that has common sense rules for who and how many people we
let in legally, so we dont flood the labor market in hard times, but that allows businesses to hire the workers they need.
With these principle in mind, I am concerned that the acute shortage of agricultural workers across our districts has not been adequately taken into consideration.
I believe that any immigration reform legislation must provide farmers, ranchers
and agricultural producers with a stable and legal workforce. For every job created
on a farm, many more non-farm support jobs are created in the supply chain of distribution. Yet Californias farmers, who are responsible for billions of dollars of economic activity every year, continue to face significant barriers to finding a legal and
stable workforce. The ideal solution would be the rapid passage of legislation like
AgJOBS.
I am concerned that some interim immigration reform proposals would create
even more devastating labor shortages for growers. It is short-sighted to think mandatory worker verification methods, like E-Verify, are the sole solution to our countrys illegal immigration issues. Further, we should not impose additional barriers
to legal workers who are willing to work hard and play by the rules. It would risk
the economic vitality of the entire American agricultural industry and fail to accomplish true immigration reform.
I believe the time for immigration reform is long overdue, but we need to find the
right balance between ensuring American citizens have the best chance of finding
a job while also ensuring our agricultural industry has an adequate and stable
workforce for years to come. I stand ready to work with you to accomplish this goal.

Mr. LUNGREN. And I ask unanimous consent that the statement

of Tom Nassif, president and CEO of Western Growers; the statement of Maureen Torrey Marshall of Torrey Farms of New York;
and the statement of Dale Foreman, chairman of the U.S. Apple
Association, be included in the record as well.
Without objection, so ordered.
[The material referred to follows:]
Prepared Statement of Tom Nassif, President and CEO of Western Growers
Chairman Gallegly, Ranking Member Lofgren and members of the committee,
thank you for the opportunity to submit this statement. Western Growers Association is an agricultural trade association headquartered in Irvine, California. Western Growers members are small, medium and large-sized businesses that produce,
pack and ship almost 90 percent of fresh fruits, nuts and vegetables grown in California and approximately 75 percent of the fresh fruits, nuts and vegetables grown
in Arizona. In total, our members account for nearly half of the annual fresh
produce grown in the United States, providing American consumers with healthy,
nutritious food.
I submit this statement in support of the proposal introduced by Representative
Lungren, H.R. 2895. Representative Lungrens proposal goes a long way towards addressing the unique labor concerns of agriculture. Unfortunately, if such a proposal
does not accompany mandatory EVerify legislation, the concerns facing the largest
agricultural state will have been ignored, precipitating greater crisis in the future.

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Sadly, legislation which is being touted as a job creation measure will have the opposite effect in communities where seasonal agriculture plays a central role. My
statement will lay out the importance of agriculture to the U.S. economy, unique
concerns and challenges our industry faces, and the need to move forward on a solution to the current labor crisis.
AGRICULTURE IS CRITICAL TO THE HEALTH OF THE U.S. ECONOMY

Studies conducted by the University of California Davis, demonstrate that every

California agricultural job creates two non-farms jobs in our economy, and every
farm dollar generates an additional $1.27 for the California economy. Nationwide,
the Department of Labor reported that 24 million jobs, a full 14 percent of all people
employed in the United States, are supported by the U.S. food and fiber industry.
Not only is agricultures role in maintaining a safe and secure food supply vital
to our economic recovery, it is critical to the strength of rural America. Western
Growers members and their employees are members of the very communities in
which they grow, pack, and sell products. In 2009, when the California water crisis
forced us to fallow 500,000 acres in the Central Valley, thousands of farms jobs were
lost, and rural non-farm businesses supported by these jobs suffered. Some communities realized unemployment levels of 40 percent.
Without an agricultural worker program that is workable, growers in California,
Arizona, and across the country will eventually face similar predicaments. Securing
a legal workforce is not a new challenge for agriculture. Weve been working towards this goal for more than 15 years. But in the face of no immigration reform,
a diminishing labor supply, threats due to I9 audits and ICE raids, and now E
Verify legislation emerging at the state and the federal levels, it is clear that U.S.
agriculture will be decimated without a workable mechanism to hire and continue
to employ the labor we need.
DEMOGRAPHICS OF U.S. AGRICULTURAL WORK FORCE

There are about 1.8 million people who perform hired farm work in the United
States. Approximately 1.2 million or more of these people are not authorized to work
here. Studies demonstrate that for a variety of reasons including the seasonal nature of the work, the difficulty of the work, and the skill level required for many
agricultural jobs, unemployed Americans are unwilling to work in the labor intensive agriculture sectorsproduce, dairy, nursery, livestock. The labor force in each
of these sectors is overwhelmingly made up of foreign born employees.
In the late 1990s, at the insistence of Senator Dianne Feinstein, a multi-county
welfare-to-farm-work program was launched in Californias Central Valley. Regional
unemployment ran 9 to 12 percent; in some localities, unemployment exceeded 20%.
State and county agencies and grower associations collaborated to identify cropping
patterns, labor needs, training, transportation, and other factors impacting employment levels. Out of over 100,000 prospective welfare to work placements, three individuals were successfully placed. In the aftermath of the program, several employment agencies statedin writingthat they would no longer seek to place the unemployed in seasonal agricultural work because it suffered from such a low success
rate, and that seasonal agriculture was not a fit for these individuals.
In 2006, in Washington State, a tight labor supply for the cherry harvest was a
warning sign of a looming labor shortage for the much larger apple harvest. Again,
state and local agencies teamed up with grower associations to conduct an advertising blitz and provide special training on how to safely pick apples without harming their market value or damaging the trees future productivity. In that program,
over 1700 workers were sought; roughly 40 were successfully placed.
In 2007, the North Carolina Farm Bureau Federation set up a statewide hotline
for job seekers, and advertised it in print and on radio. North Carolina needs roughly 60,000 crop and livestock workers each season. Two calls were received; one was
from a grandmother who felt that farm work would do her grandson good.
In 2010, the United Farm Workers Union launched the Take Our Jobs campaign. A media blitz which included national coverage. As of mid October, which
generally marked the end of the growing season and the campaign, 10,021 people

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8
had inquired about jobs in the fields, yet only nine people had taken jobs in the
fields. Most of them quit after a few days.
Some might be tempted to consider wage rates as an additional factor that might
discourage unemployed American workers from seeking agricultural jobs, but the
facts do not bear this out. According to an October 2011 USDA farm labor analysis,
wages for field workers averaged $10.54 per hour. American workers do not seek
nor stay in farm jobs, even today with unemployment hovering at 8.3 percent. The
fact is the majority of farm jobs in this country must be filled by foreign workers.
CHALLENGES TO A SECURE, STABLE WORKFORCE

Even before the challenge of EVerify legislation, the need for a workable agriculture labor program could not have been more clear.
In California, a state with no EVerify legislation pending, and across the country, agricultural employers are facing an increasingly difficult time finding a sufficient, stable workforce due to the existing federal enforcement-only work authorization laws.
As you know, the Immigration Reform and Control Act (IRCA) mandates procedures for employers to verify the employment eligibility of their workforce. Failure
to comply with IRCA can lead to substantial civil penalties and, in some cases,
criminal charges. However, employers are prohibited from questioning the documents the employee presents if they appear to be valid. When the Department of
Labor conducts workplace audits the employees work authorization is scrutinized
and run through DHS databases, often times with severe consequences for agricultural employers.
The Obama Administration has made enforcement of IRCA a priority. In 2011,
the federal government initiated 2,338 employer audits, up dramatically from past
years, made more than 150 criminal arrests and levied more than $7 million in fines
on employers.
Agriculture and food processing are among a select group of industries that are
receiving the most attention.
In March of 2011, 85 percent of a California wholesale nurserys year round workforcemore than 70 employeeshad to be terminated at the peak of their Mothers
Day floral season when DHS determined their work documents were suspect.
THE IMPACT OF EVERIFY

State
The existing challenges we face in securing a stable workforce will pale in comparison to the devastating impact of EVerify legislation in the absence of a workable labor program.
State EVerify laws are being enacted or considered across the country. The state
of Georgia offers a glimpse into the future for the nation if EVerify were to be imposed without a farm worker program. There, passage of a state law including E
Verify has led to farm labor shortages as high as 30 to 50%. Field workers are simply avoiding the state and Georgia growers and producers lost $75 million in production. An economic impact model indicates that the lost fruit and vegetable production resulted in an estimated $103.6 million reduction in total goods and services
produced on a state wide basis and over 850 full time jobs. A repeat of 2011 level
labor shortages for a full year, could result in production losses of $184 million and
1,512 jobs. And as described above, the economic misery resulting from lost production and lost payroll is also being felt in the community-based businesses that serve
farms and farm workers.
Reports from Georgia are being replayed now in Alabama, which passed an even
stricter EVerify measure. If states are the laboratories of policy formation, the
Congress should take note of these examples before enacting federal legislation
without a workable solution for agriculture.
The trends in California, which I noted does not have EVerify legislation in
place, are already startling. Our members, and other specialty crop producers across
the country, are looking to foreign countries as they make plans to expand their
businesses and create additional jobs there, not here. I have members who have

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moved portions of their operations out of the United States, not because the cost
of getting product to market is less in other countries, but because of the uncertainty surrounding the labor supply in the United States. In foreign countries there
are local populations able and willing to work in the fields. We are moving production to where the labor force is located and where the regulatory burdens allow us
to continue in business, competing with global producers.
In the absence of a workable ag labor program, EVerify not only promotes the
movement off shore of what was once U.S. production, it is a jobs killer for rural
America. When the incomes and taxes generated by farmers and employees leave
a community, seed and fertilizer companies and distributors are impacted. Tractor
and other equipment dealerships suffer. The decreased demand for packing and
processing is injurious to the suppliers of packaging and processing equipment and
their employees. Banks and storefronts close, and communities are imperiled.
Right now, the only program we have available to us to secure with certainty
legal workers is the H2A or temporary agricultural guest-worker visa program. As
has been well-documented, it is utterly failing the agricultural industry including
Western Growers members.
For example, H2A is used to address only 23 percent of U.S. agricultures labor
needs. And even then, a 2011 nationwide study of H2A users commissioned by the
National Council of Agricultural Employers that was presented to the House Subcommittee on Workforce Protections last September, reports that 72 percent of
workers arrived late, on average, 22 days after the date of need. In 2010, employers
in the H2A program reported $320M in losses due to their inability to get the
workers they needed or to get workers when they were needed.
The Department of Labor appears, at best, indifferent to agricultures needs. The
Western Growers members who farm in Yuma, Arizona hire Mexican H2A workers
who live in Mexico and commute to work. Many of these H2A employees prefer
to return home after each work day. These employees decline to use the approved
housing that is required to be provided to them by the growers under H2A regulations. Despite repeated requests for an adjustment to the requirements, the Department of Labor has taken the position that employers must make the housing available for the H2A commuters prior to obtaining employer H2A certification, regardless of whether the H2A workers intend to use it. This imposes a significant
cost on the growers without affording any benefit to the intended H2A worker
beneficiaries.
H2A is administratively burdensome, implemented ineffectively, and is too unresponsive and inflexible to meet the labor needs of U.S. agriculture.
It is also unduly punitive. DOL seeks damages in the hundreds of thousands of
dollars for minor technical violations of the program, including payment of 34 of the
wages workers would have earned if they had worked an entire season. This requirement applies even if the workers voluntarily quit the first few days of the season, but the grower notifies DHS of the workers departure more than two work
days after they have left the job site.
The Department of Labor also appears to target growers who use H2A (with
wage and hour investigations). 8 percent of H2A employers report that they were
audited before they participated in the program, but 35 percent report being audited
since entering the program.
As noted earlier, the H2A program is used by a small percentage of agricultural
employers. We are talking about the need for a program that will work for the remaining 96 percent of us and the greater than one million people we need to hire
each year.
Federal
At the federal level, mandatory EVerify legislation, H.R. 2885, was passed by
this committee in September 2011.
Similar to the state EVerify laws, in the absence of an agriculture worker program, H.R. 2885 will deprive farms across America of a majority of their existing
skilled workforce, as well as new employees willing to fill these jobs.
In H.R. 2885, agricultural employment is singled out for unique treatment with
respect to the hiring process. The positive aspect of this provision is that it recog-

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nizes the special challenges agriculture faces. Unfortunately, the bill does not provide the needed solution to this challengea workable labor program.
Agriculture is provided with an extended period before employers are required to
EVerify their employees. This 36-month extension does little to provide us with relief, however. As soon as the IRS sends an employer a notification of non-matching
wage and earning statements or the Social Security Administration or Department
of Homeland Security sends a No-Match letter, the employer arguably has constructive knowledge that the employee is not work-authorized. If the no-match cannot be
resolved, the employee must arguably be terminated. We are left without certainty
about our work force.
Moreover, with DHS conducting an unprecedented number of audits of employer
I9 records, which, as noted above, often result in the termination of a large number
of key employees, agriculture could be singled out for such audits during the 36
month deferral period. Other businesses will have already had to comply with E
Verify. Again, we are left without certainty about our work force.
Pending EVerify legislation introduced in the Senate, S. 1196, is even worse for
agriculture than the House proposal. There is no recognition of the challenges for
agriculture imposed by EVerify legislation. Under the Senate plan, all employers
would be mandated to use EVerify one year after enactment and it would eliminate
a provision retained in the House bill, the agricultural commercial-off-the-shelf
(COTS) exemption for agricultural products under current federal procurement regulations. Elimination of this exemption would make it nearly impossible to source
U.S.-produced meat, milk, fruit, and vegetables for the school lunch program and
U.S. military.
STEPS TOWARD A SOLUTION

In order to move us closer to a solution to meet our labor needs, we must consider
a new approach to an employee visa program: one that resembles the current labor
market. The number of visas would be determined by the number of employer requests for workers on a monthly and annual basis and would vary year-to-year
based on market conditions.
It would eliminate the contractual tie of the current H2A program, benefiting
employees and employers. A workable program would also provide farm workers
with the same protections, no more, no less, than U.S. workers with respect to all
employment related laws and employment taxes. Thus there would be no reason for
an employer to prefer a temporary foreign worker over a U.S. worker. The perception of such preference is often a criticism levied at temporary worker visa programs. In reality, employers generally prefer to hire local workers first rather than
rely on long distance migrants.
It is also imperative for this program to address, not only the need for future employees, but also the need to retain our experienced employees, the people who are
already here. Our farms could not function without these valuable farm employees;
yet most work without proper immigration status. Any to attempt to address the
farm labor problem in this country needs to provide a vehicle for these law-abiding,
high skilled, hard-working and valuable immigrants to continue working in agriculture legally. This is critical to ensuring a stable agricultural labor force.
CONCLUSION

The labor emergency affecting American agriculture threatens not only farmers
and rural communities livelihoods; it puts at risk our stable and reliable food supply. If there are indeed 1.2 million or more falsely documented workers in agriculture and they were no longer able to work, then the 2 nonfarm jobs that they
create will also be lost. That is a loss of 3.6 million jobs.
The workforce willing to grow and harvest crops exists, but it exists in other countries. Ensuring a stable and legally authorized farm workforce is about growing jobs
in the United States, promoting economic activity in both rural and urban communities. Its also about avoiding a dependency on foreign food supplies. With less domestic production, more food will have to be imported, compromising the safety and
security of our food supply since only 12% of imported food is inspected.

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There is not a person in our country that is not connected to this problem. If you
eat fresh produce, drink milk, grill steaks or purchase plants for your yard, you are
benefiting from the hard work of a foreign agricultural worker. And do not forget
that 90% of those working in this country illegally are employed in other industries,
not agriculture.
Based on the experiences of ad hoc state implementation of EVerify laws, we
know that enforcement at the federal level, without a workable labor program for
agriculture, would be devastating to farmers throughout the United States and the
entire U.S. economy, as jobs are permanently lost.
I urge the Members of this Committee who are concerned about the survival of
agriculture in your states to work together and reach out to your colleagues to craft
a workable bipartisan solution to this important economic issue.
Foreign workers will harvest the produce Americans eat. The question is whether
they will do so in the United States or abroad. EVerify legislation in the absence
of a workable agricultural labor program will answer this question, and it will not
be in the best interest of America.
On behalf of Western Growers, I am appreciative of this Committees willingness
to examine the labor crisis facing U.S. agriculture. The impact of the labor market
uncertainty has resulted in the competitive disadvantage for U.S. specialty crop production. We look forward to working with you to do something about it.

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20
Mr. LUNGREN. We have a distinguished panel of witnesses today.
And we are very fortunate that we got our votes done so we can
actually be uninterrupted now before Members might have to return to their districts.
Each of the witnesses written statements will be entered into
the record in its entirety. I would ask that each of you attempt to
summarize your testimony in 5 minutes or less. And to help you
stay within that, we have those beautiful timing devices next to
you. When the light switches from green to yellow, you will have
1 minute to conclude your testimony. When the light turns red, it
signals that the witness 5 minutes have expired.
We are not as difficult aswell, I wont say difficultwe are not
as precise as the Supreme Court is. If you have ever had an opportunity to argue before the Supreme Court, you are instructed that
when the red light comes on, you are to stop in mid-syllable unless
you are addressing a specific question of a member of the Supreme
Court. We dont do that here, but we would like you to try and follow that 5 minutes as much as possible.
Let me introduce the witnesses.
Mr. Gary Black: Mr. Gary Black serves as commissioner of the
Georgia Department of Agriculture. He began his career with the
Georgia Farm Bureau in 1980 as a field representative, later
served as coordinator for the State Young Farmer Program. In addition, he served as president of the Georgia Agribusiness Council
for 21 years as well as co-managing the Georgia Food Industry
Partnership. The commissioner earned his bachelors degree in agricultural education from the University of Georgia.
Our second witness will be Mr. Paul Wenger. Mr. Paul Wenger
is currently serving his second term as president of the California
Farm Bureau Federation. In addition to serving as a member of the
Federation board, he chaired the Water Advisory Committee. In
2011, Mr. Wenger was elected to the American Farm Bureau Federation board of directors. He is a third-generation farmer and
earned his bachelors degree from Cal Poly, San Luis Obispo.
Our third witness, Mr. Lee Wicker, is deputy director of the
North Carolina Growers Association, the largest H-2A program
user in the Nation. Prior to this position, he worked for the North
Carolina Employment Security Commission as the technical supervisor for farm employment programs and the statewide administrator for the H-2A program. Mr. Wicker has been growing fluecured tobacco with his family in Lee County, North Carolina, since
1978 and graduated from the University of North Carolina at
Chapel Hill.
Our fourth witness is Mr. Bruce Goldstein. Mr. Goldstein is
president of Farmworker Justice in Washington, D.C. He has substantial experience regarding the H-2A temporary foreign agricultural worker program. Prior to this, he worked as a labor and civil
rights lawyer in southern Illinois and became a staff attorney at
Farmworker Justice in 1988. He received his bachelors degree
from Cornell University and his law degree from Washington University in St. Louis.
Gentlemen, thank you very much for your testimony. We are
looking forward to it. And if you would proceed in the order in
which I introduced you and attempt to keep your remarks to about

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5 minutes. Your full commentsthat is, written, submitted commentswill be included in their entirety in our record.
Mr. Black?
TESTIMONY OF GARY W. BLACK, COMMISSIONER,
GEORGIA DEPARTMENT OF AGRICULTURE

Mr. BLACK. Thank you, Mr. Chairman.

Chairman Smith, Ranking Member Lofgren, ladies and gentlemen of the Committee, and ladies and gentlemen who are in attendance at this very important hearing today, I am deeply honored to serve as Commissioner of Agriculture for all farmers and
all consumers in Georgia, a State that is very rich in agricultural
heritage and diversity.
I first discussed this guestworker reform issue in this type of
subcommittee forum with three Vidalia onion farmers in 1997. Our
gracious host for that day was Congressman Sonny Bono. Witnesses like me have come to this hall and dozens of others on this
historic Hill for generations. We lay problems at your feet, snap
photos, and then return home. The ritual has become an industry
in and of itself. People share their problems with me, too. We can
articulate problems very easily, but crafting solutions requires
more effort.
Americas well-documented illegal immigration problem has
reached a fevered pitch. Some argue that illegal immigrants are a
drain on resources. Others insist that illegal immigrants are so
woven into society that their absence would cripple some areas of
skilled labor. Nonresident immigrant laborers, those of legal and illegal status, harvest crops, milk cows, gin cotton, and maintain
landscapes. We know this to be true, but for a generation, solutionsearching discussions have lingered on the horizon, much like a
summer afternoon cloud bank, producing lightning, thunder, and
wind but no rain. It is time that we work together to break this
drought.
I salute you, Mr. Chairman, and Congressman Kingston, my
good friend, and other Members who have demonstrated great
courage in proposing 21st-century solutions to Americas much-maligned guestworker program. Legal service reform, housing vouchers, and transferring authority to USDA are ideas that warrant immediate consideration. These proposals and others, though, must
not compete with but be complemented by mandatory E-Verify, in
my view.
Opponents have long shouted at each other in this stadium for
too long. It is time that we leave the grandstands and suit up on
the field of play with the mutual goal of solving the labor problems
in American agriculture. Agriculture is not alone in this arena, but
I suggest that we could provide the laboratory.
Mr. Chairman, your hearing shows this progress, and new bills
indicate interest. Lets embrace this opportunity by considering a
multitude of ideas.
As a component of guestworker reform, I suggested to your Senate Subcommittee counterparts last fall a penalty-based work authorization permit. Following a limited sign-up period, those who
would come forward would be subjected to enhanced oversight and
stiff penalties, including a substantial monetary penalty, a bio-

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metrically secured agriculture-only permit, immediate deportation
for violations of permit requirements, forfeiture of previously paid
Social Security benefits, waiver of future Social Security benefits
withholdings, with both portions being dedicated to a required market-based health insurance product, and fierce employer sanctions
immediately following the end of the sign-up period.
Mr. Chairman, this puzzle has many pieces, and the economy of
your hearing does not allow for each to be thoroughly examined,
but I back up my plea with more detail in my written comments
and in the 189-page document* that we were required to submit to
our legislature just this past month. My goal is to stretch the balloon in such a way that it will not return to its current shape, because the status quo is highly unacceptable.
Many retailers feature a green, red, orange, and yellow bell pepper 24/7. In Georgia, we can grow these varieties from June to October. Yet, without a 21st-century guestworker program that includes many of the initiatives that are contained in pending legislation, an idea similar to those that I have discussed, I see no way
for farmers to meet the future consumer demand with domestically
produced peppers and other agricultural products.
We need a legally documented workforce and a reliable management system to ensure integrity. I would be delighted if this could
be achieved by neighbors hiring unemployed neighbors. Farmers
routinely tell me, I will hire all local, drug-free, sober, reliable,
skilled farm workers in my community. Please tell me where I can
find them. I laud the aspiration, but I loathe to tell you that it
escapes reality.
I ask you, as respectfully as I know how, to act with haste. Many
think this is impossible in 2012, but, Mr. Chairman, I am prepared
to work with any Member to prove the critics wrong. American
farm families, our domestic food system needs our help now.
Thank you, and God bless you for what you do.
Mr. LUNGREN. Thank you very much, Mr. Black.
[The prepared statement of Mr. Black follows:]

*See Appendix.

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26

Mr. LUNGREN. Mr. Wenger?

TESTIMONY OF PAUL WENGER, PRESIDENT,
CALIFORNIA FARM BUREAU FEDERATION

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Black-4.eps

Mr. WENGER. Good morning, Chairman Smith, Congressman

Lungren, Ranking Member Lofgren, and distinguished Members of
the Committee.

27
I am here today because farmers and ranchers across the Nation
are in critical need of a solution that provides an effective, reliable,
legal workforce to cultivate and harvest our crops and tend to our
livestock. In California alone, we rely on 400,000 employees during
peak season. Nationally, it is estimated that the agricultural workforce consists of 1.83 million hired workers. Some have estimated
that as much as 50 to 70 percent of the hired workers are not authorized to work in the United States.
Agriculture is a very diverse industry. Different regions produce
different commodities with widely varying weather, cultivation, and
harvest times. These diverse needs cannot be addressed through a
one-size-fits-all single program solution. It is not a problem confined to agriculture in the Northeast, southern border States, or
western States. This is not just a problem for large farmers. According to the United States Department of Agriculture, 60 percent
of hired farm labor is hired by farms with annual sales less than
a million dollars.
Last year, this Committee approved a bill that would make EVerify mandatory for all employers regardless of size or industry.
However, it offered no solution to address the unique challenges
that a national E-Verify mandate will create for agriculture. EVerify without a workable, economical way to ensure a legal agricultural workforce will send American agricultural production, and
the additional off-farm jobs that are created by it, to other countries.
Farmers throughout the United States have tried innovative solutions to secure a domestic labor force. All have failed, and not because we dont pay enough or offer enough benefits. Rather, Americans, through habit and education, have progressed beyond agriculture to other occupations, and Americans no longer have the desire for agricultural work. Agriculture is a lifestyle occupation.
Many farmers see their children moving to other occupations, and
I can speak from experience with three sons. Two are home farming with me, and one has decided to move on to other things.
Agriculture needs a timely solution that fills the gap between the
currently legally authorized workforce and the agricultural needs of
the Nation. It is estimated agriculture employs between 900,000
and 1.2 million unauthorized workers with special skills and abilities.
Any solution must address the following: First, a workable solution must deal with the industrys ongoing need for a future workforce. Because much agricultural work is seasonal, intermittent,
and physically demanding, agriculture does not attract a domestic
workforce. Secondly, most producers have not been able to use the
H-2A program, but let me be clear: We strongly support an overhaul to help those that have been able to utilize it.
I respectfully request that the study released by the National
Council of Agricultural Employers illustrating the major flaws of
the H-2A program be submitted into the record. Even if H-2A could
be substantially improved, reform of that program alone cannot
stabilize the farm labor situation.
Mr. LUNGREN. Without objection, that report will be entered in
the record.
[The report referred to follows:]

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Mr. WENGER. Good. Thank you.

It is impossible for the program to scale up quickly, from admitting 50,000 to 60,000 workers to admitting the much larger numbers agriculture will need. An example in Texas: About 100,000
workers currently fill a need of 155,000 farm jobs each year. In
2009, only 2,807 farm jobs in Texas were certified for H-2A, meaning that the H-2A program currently fills only 1.8 percent of the
Texas Farm Bureau needs. And this comes from the Department
of Labor.
To ensure our industry a future workforce, we need a new program model that is more flexible, scaleable, and market-oriented.

80
Congressman Lungren is offering such a solution by creating a W
visa for agricultural workers. It requires a biometric visa, criminal
background check, and incentives for workers to abide by the terms
of their visas and return home when the work is done.
The closer a new program comes to replicating the way the farm
labor force moves now among employers and crops, the more likely
it will be able to meet the industrys needs. To ensure programs actually work, they likely will need to be administered by the United
States Department of Agriculture instead of the Department of
Labor, which has a long and checkered history of administering the
H-2A program.
A workable program would also meet the needs of the dairy and
the livestock industries. These operations frequently have difficulty
finding workers, and their need is year-round. Any solution must
avoid needless disruptions of the industry and must accommodate
the large, experienced labor force currently within our industry.
Any solution must deal in a practical and humane way with current workers. The most important features of a solution for our industry will be to recognize that many of our workforce want and
need the ability to come to the United States, work on our farms
and ranches, and return to their home country.
The consequences of getting it wrong are serious. Make no mistake, to lose the ability to feed our Nation and depend upon foreign-produced food is a national security issue. Imposing an EVerify mandate and not creating a reliable workforce for agriculture will endanger Americas food supply that is currently grown
in America. United States Department of Agriculture statistics
show that foreign producers are gaining market share in the
United States. Fruit and vegetable imports from China have increased over 555 percent.
In conclusion, I have shared with you a snapshot of what is taking place across America. I urge you to craft a solution that provides farmers and ranchers with a solution that is economically
practical, one that addresses the impact of our past inability to resolve this problem and recognizes the value of the people who work
for us and feed our Nation.
I will be happy to answer any questions later.
Mr. LUNGREN. Thank you very much, Mr. Wenger.
[The prepared statement of Mr. Wenger follows:]

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87

Mr. LUNGREN. Mr. Wicker?

TESTIMONY OF H. LEE WICKER, DEPUTY DIRECTOR,
NORTH CAROLINA GROWERS ASSOCIATION

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Mr. WICKER. Good morning, Mr. Chairman, Ranking Member

Lofgren, and Committee Members. I am Lee Wicker, deputy direc-

88
tor of the North Carolina Growers Association. Thank you for holding this hearing on a critical issue for labor-intensive agriculture.
As the largest H-2A program user in the Nation, NCGA has over
700 farmer members that will employ more than 7,000 H-2A workers and many thousand more U.S. workers in 2012. I am proud of
the farmers and farm workers of NCGA because they have refused
to surrender to the conventional wisdom that it is impossible to
comply with our Nations labor, immigration, and worker protection
laws. Instead, the farmers and workers of NCGA have committed
themselves to compliance. With the dogged determination of the
American farmer, all labor-intensive agriculture can comply, compete, survive, and thrive if the Federal Government would institute
commonsense agricultural labor policy reforms.
Americans are blessed to enjoy a safe, abundant, and affordable
food supply produced on our Nations farmsso fortunate, in fact,
that many Americans never give a second thought to the food they
consume, where it comes from, or what life could be like if our food
security and independence was lost. We must never take farmers,
farm workers, or our food supply for granted.
In order to continue delivering fresh food to the U.S. consumer,
American farmers need a reasonable, rational, predictable, and
workable guestworker program that supplies a legal, available, and
fairly compensated farm workforce. A program that works is critical if our Nation intends to secure the viability of our farms, especially those that grow fresh fruits and vegetables.
In previous testimony before this Committee, I described in detail the most onerous and chronic problems with H-2A. The current
program is costly, unpredictable, and administratively flawed. It is
too expensive, too litigious, and too cumbersome. Most farmers lack
confidence that the Federal agencies running the program will
meet their mandated obligations on time, even when the farmers
fulfill their responsibilities perfectly and well in advance of the
deadlines.
In my prior testimony, I also recommended practical and sustainable solutions that AG employers across the Nation agree will give
farmers and farm workers confidence that the AG guestworker program can work, be predictable, and treat all parties fairly.
The solutions include: a rational wage rate linked to the highest
of FLSA or State minimum wage plus 10 to 15 percent to help preclude wage stagnation; binding mediation and arbitration to fasttrack resolution of worker grievances and avoid costly lawsuits;
allow farmers and workers who share the benefits of the program
to also share the fixed costs; streamline the overly bureaucratic
processes that discourage participation; allow all sectors of agriculture access to the program to encourage wider participation; and
provide easy-to-understand processes for farmers and farm workers
to comply with immigration law.
In addition, these reforms must include clear statutory language
that explicitly defines the role and reach of the administrative
agency so that farmers are not continually whipsawed and subjected to different legal interpretations and regulations with every
executive branch change.
Legislation to reform the agricultural guestworker program has
been introduced in both the House and Senate in this Congress by

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89
Members from both political parties. It is clear there is a bipartisan
political agreement that the current program is badly in need of reform.
Chairman Smiths AG guestworker measure, the American Specialty Agriculture Act, adopts most of the important and meaningful reforms sought by AG employers and would be a substantial improvement over the current program. For that reason, NCGA
proudly endorsed the Chairmans bill last fall.
Some of the other legislative proposals being considered would
also make significant improvements. For example, the BARN Act
introduced by Representative Kingston and the HARVEST Act introduced by Senator Chambliss both include most of the improvements agricultural employers have suggested are needed.
Other narrowly scoped proposals expand the existing program for
specific areas like dairy, sheep, and goat herding. And while these
are important, they are insufficient to deal with the larger systemic
problems of the current program.
Finally, there is the current version of the more than 12-year-old
AgJOBS bill that seeks to legalize the current undocumented workforce without adding a single worker to an already inadequate supply and without creating a sustainable and workable guestworker
program for the future. Rather than solve the problems with the
current AG guestworker program, AgJOBS would make many of
them worse. AgJOBS clearly will not solve our problems. In fact,
many AG groups who had supported the AgJOBS proposal in the
past are not supporting it now.
I applaud this Committee for their focus and deliberate work to
solve this crisis. Your continued focus on this issue is critical. Unfortunately, the issue of farm labor has become linked to the broader immigration debate, and the agriculture industry is presently a
political hostage.
It is clear that amnesty alone for undocumented workers did not
work well for farmers after it was granted in 1986, and it will not
solve the problems now or in the years ahead. Only a workable and
predictable guestworker program will ensure that farmers continue
to plant and harvest labor-intensive crops and provide wholesome
food for our Nation.
This Congress has an opportunity and an obligation to fix this
problem or we will continue to lose our food production to foreign
competitors. Farmers and farm workers want to comply with labor
and immigration laws. Now is the time for Congress to take action
so that they can.
Thank you very much, and I look forward to your questions.
Mr. LUNGREN. Thank you very much, Mr. Wicker.
[The prepared statement of Mr. Wicker follows:]

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93

Mr. LUNGREN. Mr. Goldstein?

TESTIMONY OF BRUCE GOLDSTEIN, PRESIDENT,
FARMWORKER JUSTICE, WASHINGTON, DC

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Wicker-4.eps

Mr. GOLDSTEIN. Mr. Chairman and Members, thank you for the
opportunity to testify about agricultural guestworker programs.
Our agricultural labor system is unsustainable and unfair to
farm workers and their families. This Nations immigration system
is broken, our labor laws discriminate against farm workers, and

94
the labor practices of many agricultural employers are deficient.
The resulting turnover in the farm labor force means that now
more than one-half of the approximately 2 million seasonal farm
workers lack authorized immigration status.
The presence of undocumented workers depresses wages for all
workers, including the roughly 700,000 U.S. citizens and lawful immigrants in agriculture. But undocumented farm workers are not
leaving, and they are needed. To help agriculture thrive, we need
a program that allows undocumented workers to earn legal immigration status.
Some Members of Congress have proposed new agricultural
guestworker programs, but it makes no sense to bring in hundreds
of thousands of new guestworkers when there are over 1 million
undocumented farm workers, in addition to U.S. citizens and documented immigrants. In addition, the H-2A program is available
and has no limit on the number of guestworkers that may be
brought in annually.
Our recent report, No Way to Treat a Guest, shows that the H2A program contains modest labor protections but is fundamentally
flawed and rife with abuses of both the U.S. and foreign workers.
I ask that it be included in the record.
Mr. LUNGREN. Without objection.
[The report referred to follows:]

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Mr. GOLDSTEIN. Many employers prefer guestworkers because

they are more vulnerable than immigrants and citizens, for several
reasons: H-2A workers may only work for the employer that obtained their visa, must leave the country when the job ends, and
must hope that the employer will request a visa for them in a following year. They never earn the opportunity to become permanent
immigrants, no matter how many seasons they work here. To pay
recruitment fees and travel costs, H-2A workers often borrow
money that must be repaid even if their job ends prematurely.
Guestworkers will toil to the limits of human endurance at low

138
wages, when U.S. workers seek more sustainable productivity requirements.
An employer does not pay Social Security or unemployment tax
on guestworkers wages but must do so on U.S. workers wages. H2A workers are excluded from the principal Federal employment
law for farm workers, the Agricultural Worker Protection Act. And
while recruiting in foreign countries, employers select workers
based on age and gender, which is illegal inside the United States.
These factors have led H-2A employers to discourage U.S. workers from applying for H-2A jobs and to subject them to unfair working conditions that cause them to quit or be fired. We commend
Secretary Solis for restoring the H-2A protections that the Bush
administration unconscionably removed. These protections evolved
over many years and were issued by conservative President Ronald
Reagan.
For example, the principal wage protection requires H-2A employers to recruit U.S. workers, using at least the average hourly
wage paid to farm workers in their region as determined by the
USDA. The Bush formula, like some recent legislative proposals,
set most H-2A wages at the average of the lowest-paid one-third of
farm workers in a local area, cutting $1 to $2 per hour off of wages
for thousands of U.S. And H-2A workers.
We commend DOLs increasing oversight of H-2A applications,
which has led to the rejection of unlawful job terms that discourage
U.S. workers from applying for H-2A jobs. Nonetheless, violations
of basic program requirements are rampant, harming both U.S.
and H-2A workers. Our report recommends strengthening protections and enforcement.
Some growers audaciously complain that DOL delays processing
their H-2A applications, even though they caused the delay by submitting illegal job terms or incomplete applications. Legitimate
complaints could be addressed by providing more resources to the
agencies to process applications and visas.
Representatives Lungren, Kingston, and Smith have introduced
guestworker bills that would slash wage rates, remove labor protections such as U.S. worker recruitment protections, minimize government oversight, and shift responsibility to the Department of
Agriculture, which has no expertise administering immigration or
labor laws. Their proposals would have taxpayers pay for a huge,
costly guestworker program under which employers would bring in
hundreds of thousands of additional foreign workers despite an
adequate supply of farm labor among U.S. workers and experienced
undocumented farm workers. We strongly oppose these bills for the
harm they would inflict on U.S. and foreign workers.
Large-scale guestworker programs are anathema to American
values, because they take advantage of foreign workers by depriving them of economic freedom and political representation. Farm
workers are human beings, not imported commodities. Our immigration system is not a set of trade rules; it reveals to the world
our Nations values.
There are sensible policy solutions to provide the Nations agricultural sector with a stable, legal labor force, treat farm workers
fairly, and ensure a safe food supply. Congress should end discrimination against farm workers and labor laws, fund labor law en-

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forcement to set a level playing field among employers, and encourage employers to offer job terms that attract and retain productive
farm workers. Most importantly, Congress should provide current
undocumented farm workers with an opportunity to earn permanent immigration status and the chance to pursue the American
dream.
Thank you for this opportunity.
Mr. LUNGREN. Thank you, Mr. Goldstein.
[The prepared statement of Mr. Goldstein follows:]

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Mr. LUNGREN. Thank all of you for your testimony.

At this time, we will move into questions by the panel. And since
there are not a lot of us here, we will probably do several rounds,
if other Members wish to stick around. And I will start, with 5
minutes.
First of all, Mr. Goldstein, you indicated that my proposal, along
with other proposals, would slash wage rates. If you give workers

147
market mobilitythat is, they are not tied to a particular employer
but can seek employment in agriculture, among the different employerswouldnt that tend to give them an ability to benefit from
wages?
That is, I have heard a complaint about our proposal from
somevery, very fewfarmers who said, You mean I would have
to compete with the farmer down the street for these employees
and I might have to pay them 50 cents more an hour than the
other? How does that slash wage rates?
Mr. GOLDSTEIN. Well, first, more generally, under guestworker
programs, what happened under the Bracero program and tends to
happen under the H-2A program, as well, is that because the workers are in a restricted, nonimmigrant status, they really dont have
much bargaining power. And so
Mr. LUNGREN. Could I ask you to specifically refer to the question I have? I specifically said it will be different than the Bracero
program, it would be different than the H-2 program, in that they
would have market mobility, job market mobility. Yes, they would
be restricted to agriculture, but within agriculture they would be
able to seek employment. And if, in fact, they felt they were mistreated or not paid enough, they could seek employment from another farmer.
I would like you to talk about that specific part of it, because
Mr. GOLDSTEIN. Okay.
Mr. LUNGREN.I have been criticized by some saying, you dont
tie them to a particular employer.
Mr. GOLDSTEIN. My understanding is that the mobility would be
between employers that enroll in that guestworker program. Growers that enroll in the guestworker program would set up recruitment systems to bring in their workers. So if a worker at one grower wanted to shift to another, I dont see why most of the growers
would bring on that worker when they have already set up a recruitment system to get an adequate supply of foreign workers on
temporary work visas.
So we dont view that mobility as similar to the mobility that
people have in the usual marketplace for labor.
Mr. LUNGREN. I appreciate that. I wish you would at least concede what we have in our bill, to talk about that. I think it is illogical to suggest that giving them increased mobility in the market
in which they are allowed to come into the United States would not
have a tendency to increase wages. I just think that is logically inconsistent. So if you wont even look at that, I appreciate it.
Mr. Wenger, in your testimony, you talked about the number of
farm jobs, I believe it was in New York. Dont we have at peak season around 400,000 in California?
Mr. WENGER. Yes.
Mr. LUNGREN. And how many of those were certified for H-2A in
a recent year, if you have that number?
Mr. WENGER. I dont have the exact number, but less than 2 percent. I could get that number for you. But it is insignificant in the
fact of what our overall demand is. A lot of our growers, we have
some that are in the strawberry plant business, they can utilize in
some of their rural areas H-2A workers, but where they need larg-

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148
er numbers of people in the valley for growing those plants, it
doesnt work, and so they need to use more seasonal type of labor.
Speaking just real quickly to your other answer, last year a
neighbor of mine had cherries that were ready to harvest, and a
rain was coming in, and he would have lost his crop. The word
went out immediately, saying, I need workers. And a lot of those
workers were working in vineyards and doing other things, tying
grapevines, things that werent so critical to be done before the
weather. When the word went outhe probably paid a little bit
more for that labor; he had the labor. He brought in reefer vans
and filled them with those cherries. He was able to salvage his
crop, and he could not have done that if he didnt have the flexibility to try to find folks. Now, were a good majority of those folks
who probably didnt have legal documents? Absolutely.
And so, your program would allow for that movement between
folks. And that is so critical when we are talking about seasonal
fruit and vegetable production and weather-related incidents coming in. So we need to have that mobility.
Mr. LUNGREN. In the statement that Maureen Torrey of New
York submitted to us, and I have it in the record, she is the owner
of Torrey Farms, a 12th generation farm; 212 years ago, they took
a thousand acres of fresh market vegetable production out of production, and instead planted corn and wheat because they were unsure of how they were able to get their labor commitment.
What did that mean? That meant that their payroll for a thousand acres of onions, around $2.5 million for 50 people year round,
was replaced by payroll for a thousand acres of corn at $70,000 a
year, covering 2 employees. How that benefits the employee, I do
not understand.
Mr. WENGER. Congressman, for the record, we do have last year,
400,000 hired farm and ranch workers. Only 3,503 farm jobs were
certified H-2A.
Mr. LUNGREN. I dont want you to state under oath exactly what
it is, but would you say that it is fair to suggest that over half the
workforce in the AG fields in California is here without benefit of
legal papers?
Mr. WENGER. We are certainly afraid that at least 50 percent or
more.
Mr. LUNGREN. Would you believe that is true nationwide?
Mr. WENGER. Yes.
Mr. LUNGREN. My time is up. My colleague from California, Zoe
Lofgren.
Ms. LOFGREN. Thank you very much and thanks to all the witnesses for your testimony.
Mr. Wenger, from a California perspective, you have given your
testimony that the E-Verify program, a mandatory E-Verify program without a solution for the current workforce would be disastrous, and I believe the same thing.
You have also said, as to solutions, that it has been and will be
impossible to find and deport the current unauthorized farm workforce and replace it with new workers, properly authorized under
a new visa program or a combination program and improved H-2A.
Any solution, you have said, must deal somehow in a practical and
humane way with the current workforce.

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149
Why do you believe that it will be impossible to replace the current undocumented workforce with millions of new temporary
workers?
Mr. WENGER. They are just not out there, even if youif you
were to take the folks that are here and now dont have current
documents, that you would find out who those are through an EVerify program. And if you were to remove them to a desert island
and all of a sudden had this big vacuum of need, there wouldnt
be adequate labor supply, even in Mexico, to fill those jobs.
And I want to also say that these arent unskilled jobs. A lot of
the folks that are doing this work that have been here, they are
driving pieces of equipment that are worth more than your most
expensive Mercedes. I mean, they are highly skilled people that understand what they are doing. And so it is paramount that we find
a way to find those that are already here, that dont have legal documentation, to be able to go through some system to get that legal
credential, that W Visa to be able to allow them to work here.
Ms. LOFGREN. Talking about the skill set, mythe district I represent in California is pretty urban, but we have some agricultural
activity as well, especially in the south part of our county. And I
remember a number of years ago, when I was in local government,
visiting with the farmers who were growing mushrooms and visiting with the mushroom cutters, I mean, incredibly skilled work.
I mean, I think at that time, and that was, you know, 20 years
ago, they were paying $20 an hour to those people cutting, and I
couldnt have done it.
Can you describe some of the other kinds of skilled work? I
mean, we talk about this as unskilled labor, but I am wondering
if you could describe the kind of skills that are necessary and that
are possessed by the current workforce and why it might be very
difficult to replace those skills with an entirely new workforce.
Mr. WENGER. Certainly for a lot of our commodities in California,
but throughout the country, they are being much more mechanized.
And so you have to have a skill set that takes years and years to
try to learn that and be able to operate this machinery in an effective and in a safe manner.
But today, with such a demand for such locally produced food,
what you are seeing in your area, we are seeing with urban agriculture throughout California. Talking to some of my contemporaries and other State Farm Bureaus, what we are seeing
throughout this country, folks going from more of the commodity
areas and putting a certain amount of production into seasonal
fruit and vegetable production.
And now all of a sudden they are figuring out we need somebody
that has that hand-to-eye coordination and understands how to
pick the fruit and harvest the vegetables at the right time. Whether it is picking strawberries, if you dont pick a strawberry at the
right time, it is either overly ripe and will wreck everything else.
As it perishes in the basket, the other strawberries around it, you
have to pick it at the ripeness, the right time. It cant be too green,
cant be overripe.
It takes a hand-to-eye coordination that takes years to learn,
whether it is a plum, whether it is a peach. All the things that we
want our kids and grandkids to eat, it is talking about more fresh

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150
fruits and vegetables. And that is a highly skilledand you are exactly right, Congresswoman Lofgren. We have one of our board
members, that they do plums and peaches.
Now they pay the workers on piece rate, and they will work
every other day. And those workers will go from farm to farm, and
then they will come back. But when they work at a piece rate, they
are making 30- to $35 an hour. They know what they are are
doing, they get the right fruit in the basket, they take care of it
the right way so they can get the market and be the highest quality it can be. It is not just grunt labor, it is somebody that is very
skilled on what they are doing.
Ms. LOFGREN. Well, just to summarize, I know my time is running out. As, like Mr. Black pointed out, that we have had these
hearings and we have wrung our hands repeatedly. But what you
are saying is any plan that doesnt deal with taking the current
workforce and somehow converting them to a legal status is not
going to completely work; is that right?
Mr. WENGER. We have a number of people in this country, we
have to figure out a way to give them some kind of an adjustment
of status to allow them to be in this country to work. You are absolutely right.
Ms. LOFGREN. Thank you, Mr. Chairman. My time has expired.
Mr. LUNGREN. I thank the gentlelady. The gentleman, Mr. Ross.
Mr. ROSS. I thank you, Mr. Chairman. Let me lay the predicate
for my questioning so that you gentlemen know where I stand.
I represent a district in central Florida, predominantly rural,
very agricultural. In fact, my home county leads citrus production
in the State. We have a lot of specialty crops, a lot of road crops.
We have a tremendous demand for labor. And I concur with several
of your testimonies today that this is an issue that must be addressed. It has been debated. It has lingered, and no action has
been taken.
But I have growers and harvesters back home who cannot meet
their labor demands, who are sincerely concerned because the Department of Labor cannot meet their demand and the labor forces
they need. They are ineffective, they are inefficient. We have litigation that is out of control, and now we are looking at how we can
keep our growers from trying to farm their property for houses instead of crops, and keep them from taking their crops overseas because it is the only way they can make a living.
Having said that, we have some wonderful proposals on the table
today. I think Chairman Smith has a very good one, I think Mr.
Lungren has a very good one. But I want to address some issues
of both. And first of all, Mr. Lungren addressed this, and I would
like to go with Commissioner and Mr. Wenger and then Mr. Wicker
on portability. Is portability something that is absolutely necessary
in order to have an adequate guest worker program in this country? Commissioner.
Mr. BLACK. Congressman, did you say portability?
Mr. ROSS. Portability, yes. In other words, to go from employer
to employer once they are over here, or stay with just one employer.
Mr. BLACK. Absolutely.
Mr. ROSS. Portability is necessary then.

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Mr. BLACK. Absolutely.
Mr. ROSS. Mr. Wenger.
Mr. WENGER. Absolutely. You have to have portability or it
doesnt work.
Mr. ROSS. Mr. Wicker.
Mr. WICKER. GGA supports structured portability so workers can
move from one certified farmer to another.
Mr. ROSS. And Mr. Goldstein, I know you have commented on
this, but I dont know if you have any comment with regard to portability.
Mr. GOLDSTEIN. We need portability plus.
Mr. ROSS. Let me ask you then about something else with regard
to Chairman Smiths bill. He talks about caps in his. And we cant
get from the Labor Department what the adequate number of farm
workers we need over here. We just cant. We dont have statistics
on that, for obvious reasons.
Would it be that maybe we should look at having a ceiling, or
a ceiling and then a floor, so somewhere in between, the USDA
would do a study and say that we believe that this many number
of workers are absolutely necessary. Is that something that you
think is a workable alternative to address that issue? Commissioner.
Mr. BLACK. Congressman, I believe that is in the field of play for
sure. We have to have better data in Georgia. It is one of the
things that we have discussed in this study. Our data is woefully
underserved. We need to determine what those needs are. And if
we could get that ceiling in the proper place, I think that is good
direction.
Mr. ROSS. And I think over time if we hadif we will touch the
third rail of immigration and take this away from immigration and
call it what it is, it is an economic tool necessary to keep our economies, our local economies, our national economy to work, then I
think we might be able to have an intelligent talk about this and
pass some legislation. So if we can pass the legislation, we can
start gathering the data necessary to find out what our labor needs
are on a basis.
Mr. Wenger, how do you feel about the caps?
Mr. WENGER. I think caps are dangerous, because we have already heard from those folks that may be in H-2A, and if we could
fix H-2A then they could bring their workers in. But as we look
about seasons and trying for folks to maybe get up into the northeast and the northern areas, I think if you have a cap, then those
in the southern parts of this country are going to be better served,
quicker, and some of those others wont. And we need agriculture
across this country.
The other thing is anytime you have a cap, and if you say that
you have a certain amount of months that they can be in country,
once they come in country and go back, has that been used up?
Even though maybe they could be in country for 10 months, they
were only there for 3. And historically a lot of workers like to come
in where we can go back and forth across the border. They do like
to come in for what they are really good at for 3 or 4 months, and
they want to go home. And so have we used up one of those key
spots that we thought we had a worker in country for 10 months,

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but we only had them in for 3 or 4? So I think caps, as long as
we canand have a W Visa type of scenario where they are agricultural workers, allow them to go where the work is.
Some could be in transition. They are not all going to be working
today. Maybe they are in transit from getting across the border to
getting up into Maine or getting up into Washington State or New
York. So I think caps are dangerous.
Mr. ROSS. Thank you. Mr. Wicker, then, if I have time for one
more question. How do you feel about caps?
Mr. WICKER. On the caps, we have a de facto cap now with the
bureaucracy
Mr. ROSS. Right. Oh, yes.
Mr. WICKER [continuing]. That just chokes all the program.
Mr. ROSS. Yes. And it is been effective, yeah.
Mr. WICKER. So, you know, the cap and the American Specialty
Agriculture Act is 500,000. Should it be higher? Maybe. You know,
lets pass that and get started.
I know that if our country makes a commitment and puts the
right statutory language in place, that we can build a program that
works for farmers and is accountable for workers. And so, yeah, we
can have a program that treats workers well.
Mr. ROSS. Thank you, Mr. Wicker. Mr. Chairman, I see my time
is up.
Mr. LUNGREN. Yes. You will have a chance for a second goaround.
Mr. ROSS. Thank you.
Mr. LUNGREN. The gentlelady from Texas is recognized for 5
minutes.
Ms. JACKSON LEE. I thank the Chairman and the Ranking Member for courtesies extended. I just have comments and a quick
question and then a pointed question to Mr. Goldstein, if I could.
I have been working on these issues. I am not from any of the
States of the particular witnesses, but certainly have joined my colleagues on the importance of trying to address questions dealing
with farm workers. And in addition, I have seen the plight of many
of the farming communities, large farming communities as it relates toduring these harsh times, the loss of product, if you will,
in the field.
And I consider America and want America to be the breadbasket
of this world, and want to ensure that not only are the people who
are in need here in this country eat at prices that they can afford,
but that we are able to serve those around the world.
I am frustrated, however, because we are having this hearing,
and many of you may have heard me over and over talk about comprehensive immigration reform, which would entail, of course, even
though we have discussed the farm worker visa separately, it
would discuss a whole comprehensive approach. When we talk
about individual visas, you can imagine in this time of unemployment, no matter how much you may make the argument are Americans coming to pick product, there will be those who say you are
taking jobs away from Americans.
Let me just ask, going straight across the board, if you can give
me yes/noes, and then I will get to Mr. Goldstein, hopefully, within
my time.

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Mr. Black, does your State have housing, school requirements for
migrant workers, farm workers?
Mr. BLACK. No, maam. We abide by the H-2A. The one that is
mainly the focus is those 33 producers in Georgia, I believe, that
are using H-2A. They abide by those requirements.
Ms. JACKSON LEE. Okay. So are you saying you dont provide
housing? I said housing and schooling and for the children of migrant workers, housing for the families and schooling.
Mr. BLACK. Those are the individual responsibilities of those
crews that come to work with those farmers, not when they are living in the community.
Ms. JACKSON LEE. All right. So it is the burden of the migrant
workers. They provide their own housing.
Mr. BLACK. Yes.
Ms. JACKSON LEE. And are their children allowed to go to school
in Georgia?
Mr. BLACK. Yes, maam. But what would be important to note
here is whether or not the family is actually with them or not.
Many of these workers are not there for that time.
Ms. JACKSON LEE. Okay. I have to move quickly. All right, I
thank you. I have to move rather quickly.
And do you have any American workers in your field, U.S.?
Mr. BLACK. A very, very limited number.
Ms. JACKSON LEE. Do they come when you call them?
Mr. BLACK. I am sorry?
Ms. JACKSON LEE. Do they come when you call them?
Mr. BLACK. Well, I would say the best example I have of that,
Congresswoman, is one of my growers in Tifton, Georgia, this past
year, under his requirements of H-2A and hiring people through 50
percent of the contract period, processed 1,500 local workers. He
was able to get eight of them to stay.
Ms. JACKSON LEE. Okay. Let me move quickly. Mr. Wenger,
housing, schooling.
Mr. WENGER. Currently a lot of growers will provide housing.
They see that as an attraction to get workers, but it is not required. And schooling, if they have children that are there, they go
to the public schools.
Ms. JACKSON LEE. It is open to them.
Mr. WENGER. Yes.
Ms. JACKSON LEE. Mr. Wicker of North Carolina.
Mr. WICKER. I can only speak to our H-2A workers, and their
families dont travel with them. The State Department wont issue
them visas to travel with them.
Ms. JACKSON LEE. Okay. What about American workers? For Mr.
Wenger and Mr. Wicker, just quick answers, please.
Mr. WENGER. It would be the same thing. You know, schooling
is available through all the public
Ms. JACKSON LEE. No, American workers working in your business.
Mr. WENGER. Yeah. I mean sometimes there is housing with it,
but most of the time
Ms. JACKSON LEE. American workers, U.S. jobspeople working
in
Mr. WENGER. Right.

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Ms. JACKSON LEE. I am asking you, do they work in your business? Are they in the field picking product?
Mr. WENGER. I have some that went through the legalization
process in 1986 that are now citizens.
Ms. JACKSON LEE. Okay. Mr. Wicker.
Mr. WICKER. Yes, maam. We do have U.S. workers working on
our farms. They tend to be supervisors
Ms. JACKSON LEE. Native U.S.
Mr. WICKER. Yes, local workers, absolutely.
Ms. JACKSON LEE. All right. Mr. Goldstein, what are the problems that we should be looking at in this visa program? Thank you,
gentlemen.
Mr. GOLDSTEIN. Well, the problems were actually discussed in a
1909 report by the Commission on Country Life of Teddy Roosevelt
and reported again in the Commission on Migratory Labor, President Truman, which said the same thing that the 1909 report said
and the same thing as the Commission on Agricultural Workers
said in 1992.
We need to modernize labor practices, improve wages and working conditions to attract and retain farm workers, stop relying on
the desperation abroad to bring in vulnerable workers on restricted
nonimmigrant visas. We need to stop, end the discrimination in
labor laws against farm workers.
Farm workers dont get overtime pay. Small farmers dont even
have to pay the minimum wage. You know, we need to do things
to stabilize the workforce and treat farm workers as human beings.
And we desperately need immigration reform because more than
half the farm workers are undocumented. And we should give them
the same opportunity that this Nation of immigrants has given to
other people: to become immigrants, leading to citizenship, so that
they have bargaining power with their employers and they earn
the right to become citizens who can actually vote and have an impact on the policies that affect them.
Ms. JACKSON LEE. I thank the gentleman.
Mr. Chairman, could I just make a correction for the record,
something that I said, so that I will not offend any population? I
know that the definition of Native Americans are those who were
defined to have been here when all of us came.
So my question was trying to establish whether U.S. citizens,
other than those who have come from out of the country to work,
were seeking these jobs. And so I think you answered, Some are
and some are not.
I thank the gentlemen, and I yield back.
Mr. LUNGREN. I thank the gentlelady. We will go in for a second
round now and start off with 5 minutes.
Mr. Black, Mr. Wenger, Mr. Wicker, do you support programs so
that you can exploit vulnerable workers?
Mr. BLACK. So that we could exploit?
Mr. LUNGREN. Exploit vulnerable workers. One of the criticisms
expressed by Mr. Goldstein was that these various programs rely
on vulnerable workers. And I am trying to ask your position on vulnerable workers and how your particular program does not rely on
vulnerable workers. If that is the case, how do you empower your

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155
workers in the program that you envision for us if you try and
solve this problem?
Mr. BLACK. Well, Mr. Chairman, no, we do not support anything
that exploits vulnerable workers.
Mr. LUNGREN. Well, how would they be empowered by the programs that you support?
Mr. BLACK. Well, I think it creates a lot of challenges and opportunities in the marketplace. I think that portability, some of the
things you were discussing earlier, and being able to compete is an
excellent step for us to take.
Mr. LUNGREN. Mr. Wenger.
Mr. WENGER. Yeah. The interesting thing is if you are worried
about workers being taken advantage of, then give them a document so they can travel and vote with their legs where they want
to go if they think they havent been dealt with correctly. And you
dont need to be a citizen, you just need to have a legal work document that empowers you.
In California we have a minimum wage. We pay overtime for agricultural work. And if you are really concerned about the plight
of those that are living in the shadows and they are undocumented,
then give them a legal document.
It was interesting last year, last summer, as we were going over
to my sons graduation at Cal Poly, and we came by a peach field
that was being harvestedand every single one of them at lunch
break had their phones out and they were texting and they were
calling on the phone and talking to people.
The people we have working in the fields today arent somebody
that is just stuck back in the shadows. Give them a legal documentation so they can come out of the shadows. As far as being a
workforce, there should no reason that anybody should be taken
advantage of.
Mr. LUNGREN. Mr. Wicker.
Mr. WICKER. No, we do not support a program that would allow
exploitation.
Mr. LUNGREN. Well, then, how would you empower them? How
are they empowered? What in your program allows them not to be
exploited? Let me put it that way.
Mr. WICKER. They come through orientation and meet many,
many, different worker rights groups, like we have the collective
bargaining agreement at North Carolina Growers with the Farm
Labor Organizing Committee. They meet migrant help providers,
they meet English as a second language providers. They meet wage
and hour investigators. There is a lot of oversight and accountability.
We give full disclosure. We keep records and provide wage statements, and we comply with the law. That is how you make sure
that workers are not exploited.
Mr. LUNGREN. As you may know, I am kind of frustrated by this
whole thing. I was here in the eighties. I was the Republican floor
manager of Simpson-Mazzoli. I wrote a lot of what is now the H2A program from the eighties, hoping that would work. I look now
and see it didnt work. We havent had the protection of the farm
workers that I believe we should have if they had a legal status
and they were out of the shadows of illegality. And so I am trying

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156
to put the best program forward that I think can pass and that can
actually work. But then I hear things like a cap.
Does anybody here know how many tourists we have coming into
the United States per year? Fifty million. So what if I were here
to advocate an arbitrary cap of 25 million? Doesnt relate to the
flow, doesnt relate to the market, doesnt relate to anything except
we in Congress decided we are going to have 25 million tourist
visas here, even though the demand is 50 million.
It seems to me it makes more sense for us to be able to establish
whatever program we established without a cap, but on an annual
basis reflects the need as proven by the agriculture community, approved by the Department of Agriculture, and then reviewed on a
yearly basis. If in fact it is a million, it is a million. People seem
to be afraid of saying that.
But it seems to me it ought to be what the market tells us, and
then be real with respect to that and give people the mobility in
the marketplace, so that in fact they are not wards of a particular
employer and find themselves back in their home country, when
they have a legitimate gripe with the employer that they have, and
an ability to join unions if they want to, not join unions, those sorts
of things.
So I just try and deal in the reality of what is out there and, to
me caps is like saying we know we have 50 million visitors that
come here a year, but we, the Congress, are going to say 25 million.
Why? Well, because we think 25 million.
Maybe we ought to see what the market is and deal with the
market in that way. And whatever program we adopt, my hope in
authoring my bill was to have flexibility. And with the legal status
of the people involved in the program comes the protections of already existing law, which they can rely on.
The gentlelady from California.
Ms. LOFGREN. Well, just a couple of comments really, looking
I wasnt here in the Congress during the Reagan years, but I think
the problem we often talk about wasnt in force. The real problem
was that there was no mechanism for new people to come in. There
was insufficient capacity to meet our actual economic needs, whether it was agriculture or whether it was nuclear physicists, you
know. That was the problem. And we are still grappling with that
problem.
My colleague from Texas mentioned the need for broad reform of
the immigration laws. And before I was ever an elected official I
used to be an immigration lawyer and I taught immigration law.
And I can tell you that the system is a mess. I mean, it is a mess
when it comes to agriculture, it is a mess when it comes to family
law, it is a mess when it comes to starter visas for high-tech. I
mean, it needs reform, and I hope that we can do that.
I sense it is not going to be in the remainder of this Congress,
but it is an obligation that I hope we can address and it would be
wonderful to do it on a bipartisan basis. I think, looking at this AG
area, the ideaand I credit everybody trying to address thisbut
the idea that we could actually getlets say we put a cap of
500,000, you wouldnt find 500,000 people to apply and to be interviewed in consular offices to get to American farms in time to avoid
the destruction of American agriculture. So the idea of a cap really

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157
is not even worth discussing because it wont work. There arent
enough people to apply.
We have to talk about how do we help the people who have
worked in the fields to gain a legal status that allows them to continue to work, which we need them to do, but also allows them the
dignity and right that they should have so that they can be treated
fairly? I certainly would not suggest any of the individuals here are
unfair, but that happens in the wide world that we live in and people need bargaining power and they need the capacity to stand up
for themselves, which you cant do if you are living, you know, in
the shadows, if that is how we want to describe it.
So I do understand that immigration is a subject that has become to my mind almost irrationally hot as a topic in America
when we really should just be thinking of what is the right thing
to do for our country.
And when I think about how our country has been strengthened
by immigration, my grandfather was an immigrant. And looking at
the whole country, we have been strengthened by the people who
had enough get-up and go to get up and go and come to America
and dream American dreams and become Americans with us. And
that is really what this discussion should be about.
Instead of turning our back on our history, we should embrace
it and make sure that it is part of our future. And the AG discussion is, I think, just a small part of that discussion.
Now, having said that, I want to talk about the economy because
we have a tough economy now, and even though we have got a
largely unauthorized workforce in the field, they are contributing
to the economic wealth of the country.
And when I look at Commissioner Black, your testimony, you
talk about a survey of respondents indicating that they had lost
$10 million due to Georgias new immigration law. But if I am
reading the report correctlyand you can just say yes or nothe
survey was of 570 people who responded and reported their losses.
But we dont know whether all those people were even farmers.
And my understanding is that there are 48,000 farms in Georgia.
So the $10 million reported lost from the 570 who responded to the
survey is not all that was lost in Georgia if we have 48,000 farms;
wouldnt that be correct?
Mr. BLACK. Yes, maam. And if I may explain the rationale, the
methodology on the survey, rather than doing economic models and
extrapolating, we wanted to ask direct farmers direct questions. Of
our 800 respondents to the surveys, they were all farmers. Of the
ones that answered the economic impact question, that was the 500
number you mentioned.
Ms. LOFGREN. I see.
Mr. BLACK. And we said 26 percent of those indicated losses that
totaled over 10 million.
Ms. LOFGREN. I see.
Mr. BLACK. So that is roughly 125, 130 farmers. Then one can
extrapolate however you might care.
Ms. LOFGREN. Right.
Mr. BLACK. But we know that was the direct impact to those producers and their response.
Ms. LOFGREN. Thank you. I know my time is up.

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I will just note that the University of Georgia has done that
analysis, and what they are saying is that the direct losses would
be $140 million in the spring of 2011 for just seven of the key berry
and vegetable crops. And according to their study, the direct losses
would lead to an additional $250 million in indirect losses to Georgias economy, for a total of $391 million lost to the Georgia economy because of that immigration law they passed.
Thank you, Mr. Chairman. My time is up.
Mr. LUNGREN. Thank you. Mr. Ross.
Mr. ROSS. Thank you, Mr. Chairman.
I want to address the adverse effect of wage rates. I have growers back home, I have harvesters back home who utilize H-2A programs because they know that it is the right way to go about it.
But yet their competitors in some instances realize that because
the market drives wages more than anything, that they lose a tremendous competitive advantage and, in fact, the resulting outcome
has been that you almost incentivize by way of an adverse effective
wage rate the hiring of illegal workers.
I guess if we had, you know, fixed costs and fixed price, then an
adverse effect of wage rate could be fixed into the formula for the
growers profits, but that is not the case. This is a market-driven
enterprise.
And my question to the gentlemen, starting with Mr. Black,
would be what is your comment on the adverse effect of wage rate?
Mr. BLACK. Congressman, it is a difficult issue. When you look
in a packing shed that might have some minimum wage jobs, like
sweeping the floor, and yet if you are forced, that is an economic
pressure that you place on a job like that, having to abide by that
adverse effect of wage.
That is why I reallywhen we talk about the whole issue of
wages in agriculture, one of the things we have beenI am glad
we have been able to do in our study is kind of explode the myth
that we underpay people.
Mr. ROSS. Correct.
Mr. BLACK. You know, those that are doing the productive work.
But the facts are there are some minimum wage jobs still left
and having flexibility to
Mr. ROSS. Is important.
Mr. BLACK. Is important.
Mr. ROSS. Mr. Wenger.
Mr. WENGER. Yeah, I think anytime you set wages at a certain
level, and if you canif you dont have caps and you let people
come in and meet that, for what they are doing, their responsibility
level, they are going to find what that wage should be.
And as Mr. Black has said, there are going to be certain things
that are going to have a higher wage rate because maybe the work
id a little bit harder, maybe it is outside; whereas others you dont
have the same responsibility, and so let the market determine. I
mean, here we are, agriculture, I cant think of any group as a society that is more free market driven, and lets let our wages be free
market driven.
Mr. ROSS. Mr. Wicker, how do you feel?
Mr. WICKER. Yeah, we are advocating a super minimum wage
that is tied to the Federal or State minimum wage, whichever is

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highest. And what we are looking for is a base hourly wage rate
that is predictable.
And then I agree to some extent with these other gentlemen that
the discretion of the grower, he is going to piece-rate systems, responsibilities, skill sets, you are going to pay more than that base
hourly wage rate. But it is so expensive to farm, and what my
members tell me consistently is this. All I know is that over the
last 20 years, our wage rates have gone up on average 4.7 percent
a year. I am scared to go to the bank and push all my chips into
the middle of the table and sign the note to buy another farm or
invest capital and infrastructure to try to grow more and do better.
I am scared because I cant get my hands around where we are
going with this labor issue. All I know is that it is going up and
it is driving me out of business.
Mr. ROSS. Mr. Goldstein, dont you think that the adverse effect
of wage rate incentivizes those who dont want to participate in the
H-2A program to hire those that are illegal?
Mr. GOLDSTEIN. We think the adverse effect wage rate is actually
too low. It is a market-based wage rate. It is based on a USDA survey of agricultural employers wages. It includes wage rates paid to
undocumented workers. And because undocumented workers are
willing to work for less than U.S. citizens and legal immigrants,
that survey is resulting in depressed wage rates. In addition
Mr. ROSS. And yet my harvesters back home cant compete because there are too many being hired illegally at less than the average effective wage rate.
Mr. GOLDSTEIN. We are advocating for a complete change to that.
We would like to legalize the undocumented workforce and have
greater enforcement of farm workers rights.
You know, and you have just heard the gentlemen, Mr. Wenger,
saying some of these workers on piece rates are making $30 an
hour. I have just been talking to some growers who say, you know,
that worker is making an average of about $10 an hour, which is
above the adverse effect wage rate in most States, but cant we find
a way to work together on a solution, maybe pay them 15 bucks
an hour plus some health insurance?
Mr. ROSS. And you think that is flexibilityCommissioner Black.
Mr. BLACK. Congressman, just one other point about AEWR. One
of our growers this year completed his work, completed his paperwork, turned the paperwork in. In the process, the AEWR changed
1 penny in our State.
Did the bureaucratic system help him change that paperwork up
front? Absolutely not. He went to the back of the line and started
all over for the change of 1 penny on the AEWR. And another good
example of how that current system surely does create obstacles for
people using the program.
Mr. ROSS. Thank you again, Mr. Chairman. My time is up.
Mr. LUNGREN. I thank the gentlemen, and I thank all of our
Members here. I would like to thank our witnesses for their testimony today.
Without objection, all Members will have 5 legislative days to
submit to the Chair additional written questions for the witnesses,
which we will forward, and then ask you to respond as promptly

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as possible in writing so that we could make your answers part of
the record.
Without objection, all Members will have 5 legislative days to
submit any additional materials for inclusion into the record.
With that, again, I would like to thank our witnesses and this
hearing is adjourned.
[Whereupon, at 12:02 p.m., the Subcommittee was adjourned.]

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APPENDIX
MATERIAL SUBMITTED

FOR THE

HEARING RECORD

Prepared Statement of the Honorable Doc Hastings, a Representative in

Congress from the State of Washington
I would like to thank Chairman Gallegly and Ranking Member Lofgren, as well
as Chairman Smith and Ranking Member Conyers, for holding this important hearing on Regional Perspectives of Agricultural Guestworker Programs. Agriculture,
and in particular specialty crops, is the backbone of the economy in Central Washington, and labor shortages are a constant threat to the economic vitality of our
communities.
My district is a top-producing region of a diverse range of crops. Without Pacific
Northwest growers, the United States would lose more than half of its apple and
cherry production, more than 70 percent of its pear production, and more than 77
percent of its hops production. In addition to feeding the United States, many of
these products are exported and contribute significantly to our agricultural trade
surplus.
The crops I mention above share one thing in commonthey are all labor-intensive. When I was younger, Americans traveled from state to state, picking these
crops as they became ready for harvest before moving on to the next as the seasons
progressed. However, that is no longer the case. In my home state, this past harvest
was a clear example of the labor challenges faced by our growers.
Due to a cold growing season, the apple crop was unusually late this year. This
caused many of the workers who traditionally pick Washington state apples to move
on to other regions before the harvest beguncausing the worst worker shortage
our region has faced in decades.
In September of last yearthe height of the apple harvestWashington state
faced an unemployment rate of 9.1 percent. Growers put out signs, advertised on
the radio, and worked with workforce training centers throughout the state to try
and recruit American workers willing to pick fruit. Some offered wages as high as
$150 a day to workers with no experience. Despite these efforts, growers had only
a handful of pickers show upand they were often times gone within hours or days
after realizing how difficult the work was.
The worker shortage caused as much as two percent of the crop to be left on the
trees. Even more economically damaging, some of the fruit was harvested so late
that it impacted the storage capabilitysubstantially reducing growers rate of return.
Unfortunately, the current H-2A Program is not a viable alternative to meet the
labor needs of our growers. In his opening statement, Chairman Smith mentions
that there is no limit to the number of visas that can be issued as a part of the
program. While that may be the case, this should not be misunderstood to mean
that the program is meeting the labor needs of the agricultural community.
A number of growers in my district apply for workers through the H-2A program.
More often than not, growers get only a small percentage of the workers they have
requested. Equally damaging for growers of highly perishable productswhich most
labor-intensive crops areare the delays that growers face in securing H-2A workers, who often dont arrive until weeks or months after they are needed. Most of
these crops have a short harvest period and these delays can be the difference between making money or breaking even, and suffering a loss on the years crop.
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The H-2A program is also very difficult for growers to administer. The high cost,
burdensome paperwork requirements, and ever-changing enforcement by the Department of Labor make it impossible for most small and medium-size growers to
participate at all. The larger growers dont have just one staff member dedicated
to meeting H-2A requirementsthey have an entire team.
As it currently exists, the H-2A program denies American farmers the workers
they need and invites chaos at our borders. I have long said that a workable and
enforceable guestworker program that gives our growers and processors access to a
stable legal workforce while ensuring that our government is in control of immigration is critical to our national security and our economy.
In my view, as Congress looks at ways to control our borders and crack down on
illegal immigration, we must establish a new temporary guestworker program that
provides employers with the legal and willing workforce they need in a simple, timely manner. This program must meet the growing labor needs of our farmers, and
it must respect the seasonal nature of Central Washingtons agriculture economy.
Once Americans have passed over an agricultural job opening, employers should
have a means to bring in a legal workforce.
Once again, I would like to thank Chairman Gallegly and Ranking Member
Lofgren, as well as Chairman Smith and Ranking Member Conyers, for holding this
important hearing. I stand ready to work with you to address this critical economicand homeland securityissue.

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Letter from Diego Santiago Reyes Margarita, Farm Labor
Organizing Committee, AFL-CIO

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Prepared Statement of Robert L. Guenther, Senior Vice President,
Public Policy, United Fresh Produce Association
Thank you Mr. Chairman, for providing the opportunity for the United Fresh
Produce Association to provide comments regarding the Committees hearing on regional perspectives on ag guestworker programs. As you and the other members of
the Committee are aware, this is an issue of tremendous importance to the men and
women of this country who provide all Americans with a bountiful supply of fresh
fruits and vegetables.
United Fresh is the pre-eminent trade association for the produce industry in
managing critical public policy issues; shaping legislative and regulatory action; providing scientific and technical leadership in food safety, quality assurance, nutrition
and health; and developing education programs and business opportunities for members to better meet consumer needs for increased consumption of fresh produce.
Founded in 1904, United Fresh represents the interests of member companies from
small family businesses to the largest international corporations throughout the
global fresh produce supply chain, including growers, shippers, fresh-cut processors,
wholesalers, distributors, retailers, foodservice operators, industry suppliers and allied associations.
Our mission at United Fresh is to represent the entire industry, with all its diversity and array of views. While our members may differ on a variety of matters, we
work with them to achieve consensus on the issues that most impact the various
links in the fresh produce chain and advocate for policies that most enhance our
members ability to stay in business.
An issue on which we have consensus is with respect to the current state of the
produce industrys difficulties in maintaining a stable workforce of skilled labor and
how well the federal governments current guestworker program is able to meet that
need overall. As you are well aware, of the nearly two million on the farm jobs in
the produce industry currently are largely held by workers who were not born in
this country. According to the Agriculture Coalition for Immigration Reform (ACIR),
of which United Fresh is a member, more than 70 percent of all farm workers in
the specialty crop industry do not have the proper work authorization in spite of
the documentation they present to prospective employers. In spite of the repeated,
persistent efforts of produce industry employers to hire domestic workers, our association members have told us about multiple situations in which they had very few
domestic workers apply for the farm jobs available, and of those who did, in numerous instances those workers lasted on the job for only a few days and sometimes
only a few hours. Given the number of jobs needed to be filled, along with the highly
time-sensitive nature of harvesting fruits and vegetables and getting them to the
marketplace, these kinds of experiences force producers to use the workers who
apply for these jobs, are skilled and will stay on the job.
Our members make every effort required to recruit domestic workers. But as you
know, the Department of Homeland Security administers the H2A program, which
has the mission of providing foreign-born workers for seasonal agriculture jobs. We
have members who use the H2A program and have received satisfactory results.
However, we have also received substantial feedback from the members of our association who have tried to use the H2A program and it did not meet their workforce
needs.
For example, the National Council of Agriculture Employers (NCAE) conducted
extensive research in 2010 into the experiences of their members with the H2A
program. Among their findings are that over half of survey respondents had to seek
additional assistance from elected officials to make the H2A program responsive
to their needs. As a result of getting workers through H2A too late in the process,
reported losses of nearly $320 million. So while the H2A program has been useful
for some growers, it clearly does not meet the needs of the majority of produce farm
operators. It is estimated that less than 5 percent of farm labor comes from the H
2A program.
Last year, legislation was introduced and considered in this committee that would
mandate the use of DHSs EVerify system for all businesses nationwide. With the
high number of foreign-born workers in the produce industry nationwide, mandatory
use of EVerify would disqualify a tremendous percentage of our workforce. That

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situation, combined with a widespread lack of success in recruiting and retaining
domestic workers and a current ag guestworker program that is riddled with flaws
would lead to a disastrous situation for the produce industry. United Fresh is not
opposed to the EVerify system, but we do oppose mandating its use without a corresponding guestworker program that ensures a viable, skilled workforce. The fallout in the state of Georgia from such a law, with labor shortages and economic
losses in the millions of dollars, provides a stark illustration of the impact of mandatory EVerify only.
We believe that any bill to mandate EVerify must be accompanied by
guestworker program that address the workers who are currently in the U.S. with
as little disruption to the industry as possible; it must be flexible and market-oriented and acknowledges the nature and flow of agriculture field work, as well as
the skill level involved; and should address future workforce needs. We are ready
and willing to work with this Committee and others in Congress on how best to
achieve these principles.
Improving the ability of the produce industry to attract and retain a legal, skilled
workforce is in the best interests of legally employed Americans. ACIR estimates for
every farm job, there are three others downstream dependent on the jobs done on
the farm. Jobs in the produce chain that are not on the farm are much more likely
to be held by domestic workers. Maintaining an effective, efficient workforce in the
field helps retain hundreds of thousands of other jobs. At a time when U.S. unemployment is still close to double digits, undermining U.S. jobs is the last thing Congress should be doing.
Furthermore, legislation that would remove most of the produce industrys workforce without a proposal to fill that void, makes this country more vulnerable to food
dependence. American producers are already competing with increased imports from
countries such as China and Peru. According to the Congressional Research Service
in 2008, a gap of $7 billion existed between U.S. fruit and vegetable exports and
imports. U.S. producers can narrow that gap, but not without a stable workforce.
While mandating EVerify may seem like a simple solution to the problem of ensuring a legal workforce in agriculture and other industries, the application of this
approach on its own would have dire consequences for our members. We appreciate
the efforts of Chairman Smith, Congressman Lungren, and Congressman Jack Kingston and several others to address the needs of the agriculture sector. While we believe there is still much that needs to be done to achieve a workable solution, it is
helpful to see the acknowledgement of agricultures unique needs. We look forward
to working with our industry partners and with Members of Congress and their
staffs to bring about an effective, efficient means for ensuring a stable, legal agriculture workforce.

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Brochure submitted by the National Council of

Agicultural Employers (NCAE)

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169

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Report submitted by Gary W. Black, Commissioner,

Georgia Department of Agriculture

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